Citation Nr: 0204722
Decision Date: 05/17/02 Archive Date: 05/24/02
DOCKET NO. 96-34 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to assignment of an evaluation in excess of
10 percent for mechanical low back pain.
2. Entitlement to assignment of an evaluation in excess of
10 percent for hypertension.
(The issues of entitlement to assignment of a compensable
evaluation for hemorrhoids, entitlement to assignment of an
evaluation in excess of 10 percent for service-connected
status post anterior cruciate ligament repair, right knee,
and entitlement to assignment of a compensable evaluation for
chondromalacia patella, left knee will be the subject of a
separate Board decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1975 to May 1995.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a February 1996 rating decision by the Phoenix,
Arizona, Regional Office (RO) of the Department of Veterans
Affairs (VA) which, among other things, granted service
connection for mechanical low back pain and for hypertension,
assigning noncompensable ratings effective from June 1, 1995.
A notice of disagreement was received in March 1996, a
statement of the case was issued in April 1996, and a
substantive appeal was received in July 1996. Pursuant to
his request, the veteran was afforded a personal hearing at
the RO in August 1996.
The Board notes that in his May 1996 substantive appeal, the
veteran discussed the issues of entitlement to service
connection for right and left ankle conditions. A statement
of the case as to these issues was provided to the veteran in
April 1998. The veteran did not filed a timely substantive
appeal as to the issues of entitlement to service connection
for right and left ankle conditions. Accordingly, these
issues are not before the Board for appellate consideration.
See 38 U.S.C.A. § 7105(c) (West 1991).
The Board is undertaking additional development of the issues
of entitlement to assignment of a compensable rating for
hemorrhoids, entitlement to assignment of an evaluation in
excess of 10 percent for service-connected status post
anterior cruciate ligament repair, right knee, and
entitlement to assignment of a compensable evaluation for
chondromalacia patella, left knee, pursuant to the authority
granted by 67 Fed. Reg. 3099, 3104 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 19.9(a)(2)). When the development
has been completed, the Board will provide notice of the
development as required by Rule of Practice 903 (67 Fed. Reg.
3099, 3105 (Jan. 23, 2002) (to be codified at 38 C.F.R.
§ 20.903). After giving the notice and reviewing the
response of the veteran and his representative, the Board
will prepare a separate decision addressing these issues.
FINDINGS OF FACT
1. The veteran's service-connected mechanical low back pain
is manifested by characteristic pain on motion resulting in
additional functional loss more nearly approximating moderate
limitation of motion.
2. The veteran's service-connected hypertension requires
continuous medication for control, but does not result in
diastolic pressure predominantly 110 or more with definite
symptoms, or systolic pressure predominantly 200 or more.
CONCLUSIONS OF LAW
1. The criteria for entitlement to assignment of an
evaluation of 20 percent (but no higher) for mechanical low
back pain have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 2001); 38 C.F.R. § 4.71a, Diagnostic Code 5292
(2001).
2. The criteria for entitlement to assignment of an
evaluation in excess of 10 percent for hypertension have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp.
2001); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997);
38 C.F.R. § 4.104, Diagnostic Code 7101 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001).
This newly enacted legislation provides, among other things,
for notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of the
VCAA. See 66 Fed. Reg. 45,620 (August 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)). The intended effect of the new regulation is
to establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim. Where laws or regulations change
after a claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions of the new legislation with regard to the two
issues addressed in this decision. The record includes VA
examination reports, service medical records, and post-
service treatment records. The Board notes that the RO wrote
the veteran in August 2001 and requested information as to VA
and private treatment providers. The veteran did not respond
to the RO's letter. Additionally, at his August 1996 RO
hearing, the veteran was advised to provide the names and
addresses of any private treatment providers. However, no
additional pertinent evidence has been identified by the
veteran as relevant to the issues on appeal. Under these
circumstances, no further action is necessary to assist the
veteran with his claims.
Furthermore, the veteran has been notified of the applicable
laws and regulations which set forth the criteria for
entitlement to increased evaluations. The discussions in the
rating decision, statement of the case, and supplemental
statement of the case have informed the veteran of the
information and evidence necessary to warrant entitlement to
the benefits sought. Additionally, the veteran was afforded
a RO hearing in August 1996. The Board therefore finds that
the notice requirements of the new law have been met.
The Board has reviewed the facts of this case in light of the
VCAA and the new VCAA regulations. As discussed above, VA
has made all reasonable efforts to assist the veteran in the
development of his claims and has notified him of the
information and evidence necessary to substantiate the claims
addressed in this decision. Consequently, the case need not
be referred to the veteran or his representative for further
argument as the Board's consideration of the new law and new
regulations in the first instance does not prejudice the
veteran. See generally Sutton v. Brown, 9 Vet. App. 553
(1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC
No. 16-92 (July 24, 1992).
Under the circumstances of this case, where there has been
substantial compliance with the VCAA, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
Factual Background
Service medical records demonstrate relevant findings of
minor degenerative changes involving the superoanterior
aspect of L5, mild lumbar strain with no neurological
deficits, hypertension, and mechanical low back pain.
Post-service treatment records dated in 1995 and 1996
demonstrate pertinent complaints of low back pain. A July
1995 clinical record notes tenderness to palpation of the
lumbosacral area, restricted range of motion, and muscle
spasm. An assessment of lumbosacral strain was noted. A
separate March 1996 clinical record noted relevant assessment
of mild hypertension.
In a February 1996 rating action, the RO, in pertinent part,
granted entitlement to service connection for mechanical low
back pain, evaluated as noncompensable and hypertension,
evaluated as noncompensable.
At his August 1996 RO hearing, the veteran testified that his
back hurt all of the time, particularly after a long drive.
He stated that he was on regular medication to control his
hypertension. He testified to experiencing stiffness and
pain in the back with spasm on flare-ups. He also reported
pain radiating into the left leg.
Upon VA hypertension examination dated in August 1996, it was
noted the veteran was currently taking anti-hypertensive
medication. Physical examination revealed three blood
pressure readings of 154/97, 150/90, and 156/98. The
veteran's pulse remained in the 80's. Cardiac examination
revealed regular rate and rhythm, no gallops, rubs, or murmur
were noted. An impression of hypertension with no evidence
of end-organ damage was noted.
Upon VA examination of the joints dated in September 1996,
the veteran complained of chronic pain in the back, which
occasionally radiated down into the left lower extremity to
the mid-calf area. The symptoms were noted as aggravated by
bending and lifting. Physical examination revealed flexion
of the lumbosacral spine to 60 degrees and extension to 10
degrees. Both lateral motions were 20 degrees and rotation
was 40 degrees. There was pain on all motion of the
lumbosacral spine, most marked on flexion and extension. The
examiner noted there was no muscle guarding and no tenderness
or tilt. Impressions included chronic lumbosacral strain.
Radiological examination of the back revealed a negative
lumbar spine.
Upon VA examination of the joints dated in February 1997, the
veteran reported having low back pain. It was noted that it
did not limit his ambulation, but did limit his ability to
lift heavy things. The veteran denied having any sciatica.
The pain was described as being in the low back in a gripping
sensation without any radiation to his buttocks or lower
extremities. It was noted that the back gave out about two
times a year. The veteran reported participating in physical
therapy with some relief.
Physical examination revealed the veteran's gait was within
normal limits. He was able to heel and toe walk and did not
have any atrophy. Range of motion in the back was noted as
80 degrees flexion, 25 degrees extension, 30 degrees lateral
bending in both directions, and 35 degrees rotation in both
directions. There was no scoliosis and no paraspinal muscle
spasm. Patrick's test was negative and there was no
discrepancy in leg length. He had 5/5 strength in all of his
muscles groups in the bilateral lower extremities. Sensation
and reflexes were also noted as intact. The pertinent
assessment was chronic low back pain without any x-ray
changes noted. In regard to the back, the examiner described
the veteran's decreased range of motion as minimal. The
examiner recommended physical therapy for back strengthening
as well as mobility exercises.
In a February 1998 hearing officer decision, a 10 percent
evaluation was assigned for hypertension, effective June 1,
1995, and a 10 percent evaluation was assigned for mechanical
low back pain, effective from June 1, 1995.
Analysis
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
When evaluating disabilities of the musculoskeletal system,
38 C.F.R. § 4.40 allows for consideration of functional loss
due to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. DeLuca v.
Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45
provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet.App. 589, 594 (1991). In the instant case,
the veteran is technically not seeking an increased rating,
since his appeal arises from the original assessment of a
disability rating. In Fenderson v. West, 12 Vet. App. 119
(1999), it was held that evidence to be considered in the
appeal of an initial assignment of a rating disability was
not limited to that reflecting the then current severity of
the disorder. In that decision, the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) (hereinafter,
"the Court") also discussed the concept of the "staging"
of ratings, finding that, in cases where an initially
assigned disability evaluation has been disagreed with, it
was possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal period. Fenderson v. West, 12 Vet. App.
119 (1999).
I. Mechanical Low Back Pain.
The veteran's service-connected mechanical low back pain is
currently evaluated as 10 percent disabling pursuant to
38 C.F.R. § 4.71a, Diagnostic Code 5295, which contemplates
lumbosacral strain. A 10 percent disability evaluation is
warranted for lumbosacral strain with characteristic pain on
motion. Lumbosacral strain with muscle spasm on extreme
forward bending with loss of lateral spine motion,
unilateral, in a standing position warrants a 20 percent
disability evaluation. A 40 percent evaluation, the highest
allowable under this diagnostic code, contemplates severe
lumbosacral strain with listing of the whole spine to the
opposite side, positive Goldthwaite's sign, marked limitation
of forward bending in the standing position, loss of lateral
motion with osteo-arthritic changes or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility of forced motion. See 38 C.F.R. § 4.71a,
Diagnostic Code 5295.
The Board notes that limitation of motion of the lumbar spine
is contemplated by 38 C.F.R. § 4.71a, Diagnostic Code 5292.
Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5292, a 10
percent disability evaluation contemplates slight limitation
of motion of the lumbar spine. A 20 percent disability
evaluation is warranted for moderate limitation of motion of
the lumbar spine. Severe limitation of motion of the lumbar
spine warrants a 40 percent disability evaluation.
The veteran's service-connected mechanical low back pain is
manifested by subjective complaints of constant pain,
particularly after a long drive. Clinical records dated in
1995 noted tenderness to palpation of the lumbosacral area,
restricted range of motion, and muscle spasm. The September
1996 VA examiner noted limitation of motion with pain on all
motion, most marked on flexion and extension. Straight leg
raising was noted as negative and deep reflexes were
symmetrical. An impression of chronic lumbosacral strain was
noted and x-ray examination was negative. The February 1997
VA examiner described the veteran's decreased range of motion
as minimal and noted no scoliosis or paraspinal muscle spasm.
Following a review of the evidence of record, the Board
concludes that the veteran's back symptomatology warrants no
higher than a 10 percent evaluation pursuant to Diagnostic
Code 5295. The evidence shows essentially characteristic
pain on motion. However, there is no evidence of loss of
lateral spine motion, unilateral, in standing position, nor
are there consistent findings of muscle spasm on extreme
forward bending. The criteria for the next higher rating of
20 percent under Code 5295 have therefore not been met.
Looking to Diagnostic Code 5292, the clinical evidence at
first glance does not show more than slight limitation of
motion. In this regard, while the most recent examination
showed some limitation of flexion to 80 degrees, the examiner
described the decreased range of motion as minimal. However,
the medical evidence does document complaints of pain,
especially on flexion and extension. Significantly the
February 1997 examiner commented that the veteran limits his
movements when lifting heavy objects. This appears to
suggest additional functional loss due to pain. While such
additional limitation may not always be present, it does
appear to be present during flare-ups. The Board also finds
it of some significance that the limitation of motion was
greater on examination in 1996 than in 1997, again suggesting
that there may be additional functional loss with certain
activities and during flare-ups. In the Board's view, it is
such additional functional loss which must be acknowledged
pursuant to 38 C.F.R. §§ 4.40, 4.45. The Board finds that
the low back pain results in additional functional loss so as
to produce a disability picture more nearly approximating
moderate limitation of motion under Code 5292. Accordingly,
a 20 percent rating is warranted. After reviewing the
record, the Board further finds that this disability picture
has been present during the course of the appeal and that a
20 percent rating is warranted effective June 1, 1995.
Fenderson.
However, the preponderance of the evidence is against a
finding that the veteran's low back disability results in
more than moderate limitation of motion, even when
consideration is given to additional functional loss due to
pain, fatigue, incoordination and weakness. Nothing in the
evidence suggests such a severe disability picture. The low
back pain does not appear to limit ambulation or result in
more than moderate limitation of flexion and extension,
including during flare-ups.
The Board also notes here that there does not appear to be
any neurological involvement to warrant application of Code
5293 for intervertebral disc syndrome. The evidence shows no
sciatica or radiation into the legs, nor are there any
bladder or bowel symptoms. Accordingly, the Board declines
to consider the low back disability under Code 5293.
II. Hypertension.
The veteran's service-connected hypertension is currently
rated as 10 percent disabling pursuant to 38 C.F.R. § 4.104,
Diagnostic Code 7101, which contemplates hypertensive
vascular disease. The Board notes that the criteria for
evaluation of hypertensive vascular disease have been revised
during the pendency of the veteran's appeal. Diagnostic Code
7101 was revised effective January 12, 1998. See 62 Fed.
Reg. 62507 (Dec. 11, 1997). As previously noted, the Court
has held that where the law or regulation changes after the
claim has been filed, but before the administrative or
judicial process has been concluded, the version most
favorable to the veteran applies unless Congress provided
otherwise or permitted the VA Secretary to do otherwise and
the Secretary did so. Karnas v. Derwinski,
1 Vet. App. 308 (1991). Thus, the Board will evaluate the
veteran's claim under both the old and the new criteria.
The criteria in effect prior to January 12, 1998, provide
that hypertensive vascular disease (essential arterial
hypertension) with diastolic pressure predominantly 100 or
more warrants a 10 percent evaluation. A 20 percent
evaluation is warranted for diastolic pressure predominantly
110 or more with definite symptoms. Diastolic pressure
predominantly 120 or more and moderately severe symptoms
warrants a 40 percent evaluation. A 60 percent evaluation is
warranted for diastolic pressure predominantly 130 or more
and severe symptoms. Note 1 provides that for the 40 percent
and 60 percent ratings under code 7101, there should be
careful attention to diagnosis and repeated blood pressure
readings. Note 2 provides that when continuous medication is
shown necessary for control of hypertension with a history of
diastolic pressure predominantly 100 or more, a minimum
rating of 10 percent will be assigned. See 38 C.F.R.
§ 4.104, Diagnostic Code 7101 (1997).
The criteria in effect from January 12, 1998, provide that
hypertensive vascular disease (hypertension and isolated
systolic hypertension) with diastolic pressure predominantly
100 or more, or; systolic pressure predominantly 160 or more,
or; minimum evaluation for an individual with a history of
diastolic pressure predominantly 100 or more who requires
continuous medication for control warrants a 10 percent
evaluation. A 20 percent evaluation is warranted for
diastolic pressure predominantly 110 or more, or; systolic
pressure predominantly 200 or more. Diastolic pressure
predominantly 120 or more warrants a 40 percent evaluation.
A 60 percent evaluation is warranted for diastolic pressure
predominantly 130 or more. Note (1) provides that
hypertension or isolated systolic hypertension must be
confirmed by readings taken two or more times on at least
three different days. For purposes of this section, the term
hypertension means that the diastolic blood pressure is
predominantly 90mm. or greater, and isolated systolic
hypertension means that the systolic blood pressure is
predominantly 160mm. or greater with a diastolic pressure of
less than 90 mm. Note (2): evaluate hypertension due to
aortic insufficiency or hyperthyroidism, which is usually the
isolated systolic type, as part of the condition causing it
rather than by a separate evaluation.
A review of the record reflects that the veteran takes anti-
hypertensive medication on a regular basis. VA hypertension
examination dated in August 1996 revealed blood pressure
readings of 154/97, 150/90, and 156/98. The examiner noted
there was no evidence of end-organ damage. The Board finds
that the veteran's symptomatology is indicative of no more
than a 10 percent evaluation under either the old or the new
criteria in that it demonstrates the use of medication
continuously for control without objective medical evidence
of diastolic pressures predominantly 110 or more with
definite symptoms, or systolic pressure predominantly 200 or
more. Thus, the criteria for an evaluation in excess of 10
percent for hypertension have not been met under either the
old or the new criteria.
Conclusion
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that his
service connected low back disability and/or his service-
connected hypertension have resulted in marked interference
with employment or necessitated frequent periods of
hospitalization. Under these circumstances, the Board finds
that the veteran has not demonstrated marked interference
with employment so as to render impractical the application
of the regular rating schedule standards. In the absence of
such factors, the Board finds that criteria for submission
for assignment of an extraschedular rating for either
disability pursuant to 38 C.F.R. § 3.321(b)(1) are not met.
See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
Finally, in making this determination, the Board has
considered the provisions of 38 U.S.C.A. § 5107(b), but there
is not such a state of approximate balance of the positive
evidence with the negative evidence to otherwise warrant a
more favorable decision on the low back disability issue or a
favorable decision on the hypertension issue.
ORDER
Entitlement to assignment of an evaluation of 20 percent for
mechanical low back pain is warranted. To this extent, the
appeal is granted.
Entitlement to assignment of an evaluation in excess of 10
percent for hypertension is not warranted. To this extent,
the appeal is denied.
ALAN S. PEEVY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.